Archive for year: 2019

by Corey Zoldan
DimuroGinsberg PC

Imagine this: Two individuals start a job at the same time. Quickly, management recognizes one employee’s hard work and dedication and promotes her. In a short time, the employee ascending the corporate ladder becomes the superior of the employee with whom she had onboarded. The nonpromoted employee becomes jealous and resentful. To this employee, there must be some reason not based on merit why the other employee has advanced. Whether true or not, the nonpromoted employee starts spreading a rumor—the promoted employee “slept” her way to the top.

Facts

The above-mentioned scenario is far from hypothetical. Accusations and unsubstantiated rumors like this unfortunately exist in the workplace. Indeed, this exact fact pattern recently played out in a case arising out of Sterling, Virginia.

In December 2014, Evangeline Parker was working for Reema Consulting Services, Inc. (RCSI), at its warehouse facility. By March 2016, after a series of promotions, she became an assistant operations manager. Within two weeks, another RSCI employee who had started working for the company at the same time began spreading a rumor she had been promoted only because she had a sexual relationship with a higher-ranking manager.

As the rumor spread, Parker alleged she “was treated with open resentment and disrespect” by coworkers, including her subordinates. She was also told by the highest-ranking manager at RSCI, Larry Moppins, that he would be unable to promote her any further because of the rumors, and in May 2016, he fired her.

Lawsuit

Believing her termination was unjustified and unfair, Parker filed suit against RCSI in federal district court. Among her legal claims was a hostile work environment claim for sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

In assessing the legal merit of Parker’s suit, the district court considered the cause of the hostile work environment to which she had allegedly been subjected. Specifically, were her coworkers, superiors, and subordinates harassing her because she was a woman, or were they doing so because of her alleged conduct? And was it even possible to separate the two considerations?

The federal court decided to focus on Parker’s conduct. Although it empathized with her situation, it noted “that her complaint as to the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.” Thus, it reasoned the “same type of rumor could be made in a variety of other contexts involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to promotion.” Because the district court found the cause of the purported hostile work environment couldn’t be attributed to her sex, it dismissed her claim.

Appeal

Parker appealed to the U.S. 4th Circuit Court of Appeals (which is based in Richmond and whose decisions apply to employers not only in Virginia but also in West Virginia, Maryland, and North and South Carolina). In analyzing her discrimination claim, the 4th Circuit disagreed with the district court’s view that the rumor wasn’t related to her sex. Rather, it characterized the rumor as a female subordinate having sex with her male superior to obtain a promotion, “implying that Parker used her womanhood, rather than her merit, to obtain . . . a promotion.”

To the 4th Circuit, the stereotype “that generally women, not men, use sex to achieve success” clearly persists in today’s world. It also pointed out that Parker’s lawsuit, in addition to inferentially invoking sex stereotyping, explicitly alleged only males started and spread the rumors about her and that she was treated differently than the male manager with whom she was alleged to have had a sexual relationship.

Accordingly, the 4th Circuit found that any distinction between harassment “based on gender” and harassment “based on conduct” wasn’t one of substance “because the conduct is also alleged to be gender-based.” Thus, it held that the district court was wrong to have ruled she had failed to state a valid claim for a hostile work environment. It reversed the dismissal of her Title VII claim and sent the case back to the district court for further proceedings. Parker v. Reema Consulting Services, Inc., 2019 WL 490652 (4th Cir., Feb. 8, 2019).

Bottom line

The 4th Circuit’s decision provides important lessons for all employers. Although we as a society may be working to combat negative stereotypes, they still exist in many workplaces. In this case, the 4th Circuit made clear that any attempt to masquerade sex discrimination as discrimination based on conduct will fail when it perpetuates a discriminatory negative stereotype. Although Parker’s case dealt with the stereotype of women using sexual promiscuity to gain advancement in the workplace, the principle applies equally to negative stereotyping based on race, religion, national origin, or some other legally protected category.

As an employer, you can avoid being in the position RCSI now finds itself of facing a jury trial on Parker’s hostile work environment claim. Make sure you have policies in place to identify workplace misconduct, and when problematic situations arise, launch proper and expedient investigations with the oversight and guidance of experienced employment counsel.

Corey Zoldan is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. He may be reached at czoldan@dimuro.com.

by Jayna Genti
DiMuroGinsberg PC

The regular session of the 2019 Virginia General Assembly has ended. The session convened on January 9 and adjourned on February 24. The reconvened session is scheduled for April 3. During the regular session, approximately 35 labor and employment bills were introduced, but only three were passed and sent to Governor Ralph Northam for his signature.

Completed actions

Minimum wage exemptions. In an effort to modernize Virginia’s minimum wage law, the General Assembly passed House Bill (HB) 2473, which repeal certain minimum wage exemptions that were viewed as Jim Crow-era legalized wage discrimination against African Americans. The legislation rescinds laws that allowed employers to pay less than minimum wage to newsboys, shoeshine boys, ushers, doormen, concession attendants, cashiers in theaters, and babysitters who work 10 hours or more per week.

In 2018, a similar bill with the same intent died in committee. This year, the measure passed the senate 37-3 on January 18. On February 13, the house voted 18-14 in favor of a modified version of the bill. Two days later, the senate unanimously approved that version and sent it to Governor Northam to be signed into law.

Help for new mothers. Two bills facilitating employees’ ability to express breast milk were introduced this session. One passed, while the other was abandoned in committee.

The bill that passed the house and senate, HB 1916, requires the Virginia Department of Human Resource Management to develop state personnel policies that provide for break time during which mothers may express breast milk. The policies will require each state agency to provide:

1. Reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time the employee has a need to express breast milk; and
2. A place, other than a bathroom, that is shielded from view and free from intrusion by coworkers and the public and may be used by an employee to express breast milk.

The bill that stalled in committee, HB 1862, would have required all employers to provide reasonable unpaid break time each day to employees who need to express breast milk for nursing children and to make reasonable efforts to provide a room or other location, other than a bathroom, where employees can express breast milk in privacy.

Written wage statements. The General Assembly also passed SB 1696, which require every Virginia employer to provide employees, on each regular payday, a written statement on their pay stub or through online accounting that shows:

1. The name and address of the employer;
2. The number of hours the employee worked during the pay period; and
3. The employee’s rate of pay.

Currently, employers must provide a written statement of employees’ gross wages and any deductions only upon request. The new measure doesn’t apply to agricultural employment and has a delayed effective date of January 1, 2020.

Unfinished business

Covenants not to compete. A bipartisan bill prohibiting employers from entering into, enforcing, or threatening to enforce covenants not to compete with low-wage workers passed the senate as well as the House Commerce and Labor Committee. However, the General Assembly ended before the bill could be put up for a vote in the house.

Given the bill’s bipartisan support, similar legislation may be introduced again next year. According to Delegate Schuyler VanValkenburg (D-Richmond), the proposed legislation is probusiness as well as proemployee because noncompete agreements hinder businesses from hiring talented employees and prevent employees from starting their own companies.

Minimum wage increases. At least four bills introduced in the General Assembly this session proposed to raise Virginia’s minimum wage, which is set at the federal floor of $7.25 an hour. None of the measures made it into law, and most were left in committee. A bill passed in the Senate Commerce and Labor Committee by a 9-5 vote would have mandated annual increases to the hourly minimum wage, raising it to $8 this year and reaching a final rate of $11.25 in 2022. Another bill that would have increased the minimum wage to $10 this year, $13 next year, and $15 by 2021 made it through committee but was defeated in the senate by a vote of 21-19.

Although none of the efforts to increase the state minimum wage was successful this year, it’s likely that similar efforts will be undertaken when the General Assembly convenes for its 2020 session.

Wage history. A senate bill that would have prevented employers from requiring as a condition of employment that prospective employees provide or disclose their wage or salary history was defeated in committee. The proposal also would’ve prohibited employers from attempting to obtain prospective employees’ wage or salary history from current or former employers.

Nonpayment of wages. House bills designed to allow employees to file individual claims against employers that fail to pay wages didn’t make it out of committee. Other bills that died in committee included a bill to authorize the commissioner of labor and industry to investigate and proceed against employers suspected of nonpayment of wages and one that would have prohibited employers from retaliating against employees who complain about the failure to pay wages.

Bottom line

The General Assembly made no significant changes to Virginia’s employment laws in 2019, especially for private-sector employers. However, the bills that were introduced but didn’t make it into law show that change is in the air for the minimum wage, restrictive covenants, and policies to assist working mothers. Keep an eye out for our coverage of the 2020 General Assembly to see how legislative proposals in those and other emerging areas of the law will fare with senators and delegates next year.

Jayna Genti is an attorney with DiMuroGinsberg PC and a contributor to Virginia Employment Law Letter. She may be reached at jgenti@dimuro.com